Veteranclaims’s Blog

January 3, 2018

Single Judge Application; Back Condition; “continuity of symptomatology” analysis under § 3.303(b); Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed. Cir. 2008); 38 C.F.R. § 3.309;

Excerpt from decision below:

“Specifically, the examination report failed to adequately consider an alternative theory of service connection through a “continuity of symptomatology” analysis under § 3.303(b), title 38, Code of Federal Regulations. The appellant has a condition that is considered “chronic” under 38 C.F.R. § 3.309 and thus can establish service connection through a theory of continuity of symptomatology. The examiner provided a negative nexus opinion, but found that the appellant experienced a “flare up of back pain once or twice yearly.” R. at 2774. As long as the back pain is in the same location when it flares up it is unclear why this pain would not be a continuity of symptoms subject to service connection. While the examiner found that “[a]n etiologic diagnosis is not established for most patients with back pain,” such a finding is irrelevant when considering whether service connection is warranted under a theory of continuity of symptomatology. See Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed. Cir. 2008) (finding that an appellant does not need to provide medical evidence of an etiological link between a condition in service and a current
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disability to satisfy 38 C.F.R. § 3.309).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-4092
DONNIE G. DODD, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: The appellant, Donnie G. Dodd, appeals through counsel a
September 1, 2015, Board of Veterans’ Appeals (Board) decision that denied him entitlement to benefits based on service connection for (1) gout; (2) a lumbar spine disorder; and (3) a psychiatric disorder claimed as depression secondary to his lumbar spine and gout conditions. Record (R.) at 2-21. The appellant argues that the Board erred by relying on inadequate medical examinations to
deny the appellant service connection for his gout, lower back disability, and secondary psychiatric condition. Appellant’s Brief at 1-22. For the following reasons, the Court will vacate that part of the Board’s September 2015 decision on appeal regarding the appellant’s lumbar spine disorder and psychiatric disorder secondary to his lumbar spine disorder, and remand those matters for
readjudication. The remainder of the decision will be affirmed.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations, is consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792)
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(“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and
justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as
determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254. Accordingly, the
statutory command of Congress that a single judge may issue a binding decision, pursuant to
procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v.
Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990).
From the beginning of the Republic statutory construction concerning congressional
promises to veterans has been of great concern. “By the act concerning invalids, passed in June,
1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose
names are contained in a report previously made by him to congress. If he should refuse to do so,
would the wounded veteran be without remedy? Is it to be contended that where the law in precise
terms, directs the performance of an act, in which an individual is interested, the law is incapable
of securing obedience to its mandate? Is it on account of the character of the person against whom
the complaint is made? Is it to be contended that the heads of departments are not amenable to the
laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant is a veteran who served on active duty in the U.S. Army from March 1985
to March 1988 as a unit supply specialist. R. at 1835 (DD Form 214). In July 1986 during service,
the appellant sought treatment for lower back pain. R. at 2818. In November 1987, the appellant
again sought treatment in service for his lower back. R. at 2824. In January 1988, the appellant
underwent a radiologic consultation for his lower back because of his “chronic low back pain.” R.
at 2825.
In August 1989, during his intake report for the Army Reserve, the appellant stated that he
had recurrent back pain. R. at 2829. The appellant contends that he has experienced back pain
since service. R. at 2433-34. Between 1987 and 1997 the appellant has reported that he
experienced flareups of back pain at least once or twice a year. R. at 2774. In 1997, the appellant
“developed worse back pain” as a result of a work injury. R. at 2762. The appellant continued to
work until 2008, but experienced back pain throughout his employment, having to take
medications often. R. at 2762.
In December 2012, the appellant filed a claim seeking benefits for his lower back disability,
gout, and depression. R. at 2904. In May 2013, the appellant underwent a VA examination of his
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lower back. R. at 2759-98. The examiner diagnosed the appellant with arthritis in his lower back
and stated that
[a]lthough the Veteran reported that there was an event during his service time that
started his “back trouble”, the record does not show a causative event for his first
episode in [J]uly 1986. Veteran did report heavy lifting as inciting second
documented bout of back pain in November 1987, however it had been over a year
since the previous bout of pain, so the 2 episodes are not likely related . . . . From
1987 until 1997, he had flare of back pain once or twice yearly . . . . I conclude after
a review of medical records . . . the [lower back pain] is less likely as not
permanently aggravated or a result of any event and/or condition that occurred
and/or expressed in-service and/or within one year of discharge . . . . An etiologic
diagnosis is not established for most patients with back pain, in whom episodes of
back pain are self-limited and resolve without specific therapy.
R. at 2770, 2774. In May 2013, VA denied the appellant’s claim. R. at 2740. The appellant
appealed this decision, and in July 2014 the Board remanded the appellant’s claim for further
development. R. at 2417-19.
In April 2015, the appellant underwent a VA foot examination. R. at 46-55. The examiner
noted that the appellant reported that he was first diagnosed with gout in 2007; however, VA first
diagnosed him with gout in 2011. R. at 47-48. The examiner found that the appellant’s gout was
less likely than not incurred in or due to his service because there was no record of any treatments
for gout during service. R. at 54.
In September 2015, the Board issued the decision now on appeal where it denied the
appellant service connection for the appellant’s lumbar spine disorder, gout, and acquired
psychiatric disorder as secondary to his lumbar spine disorder and gout. R. at 2. Concerning the
appellant’s gout, the Board relied on the April 2015 examiner’s findings that the appellant’s gout
was not incurred in or due to service because although the appellant stated that the was treated for
gout inservice, no records existed of any in-service treatments for gout. R. at 15-18 Regarding
the appellant’s lumbar spine disorder, the Board relied on the May 2013 examiner’s note that “more than 70% of people in developed countries will experience low back pain at some time in their lives [and] [e]ach year 15 to 45 percent of adults suffer low back pain,” which the Board found “implied that the [appellant’s] occasional periods of low back pain were acute in nature.” R. at 13-
14. The Board also pointed to some inconsistency in the appellant’s testimony regarding chronicity, without detailing this inconsistency, to deny his lumbar spine disorder claim. R. at 17.
This appeal ensued.
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The Court discerns no clear error with the Board’s treatment of the appellant’s gout claim.
Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (the Court reviews the Board’s rating decisions for
clear error); see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The Board
properly relied on the April 2015 examiner’s finding that the appellant’s gout was not likely due to
service because the appellant did not have any in-service records of treatment for gout. R. at 54.
The appellant was first diagnosed with gout in 2011. R. at 47. Although the appellant alleges that
he first suffered from symptoms of gout in service, the record is absent any evidence to support
this contention. See R. at 54. To the extent that the April 2015 examiner’s failure to consider the
appellant’s leg cramps during service was an error, the Court concludes any error was harmless.
See 38 U.S.C. ‘ 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial
error”). The appellant has presented no evidence suggesting that leg cramps, a different medical
condition, is causally related to the appellant’s gout. See Hilkert v. West, 12 Vet.App. 145, 151
(1999) (en banc) (finding that the appellant bears the burden of persuasion on appeals to this
Court), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000). For these reasons, the Court discerns no
clear error in the Board’s finding that the appellant’s gout was not due to, or incurred in service.
See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
The Court, however, concludes that the Board erred in failing to return the May 2013
examination for clarification. See 38 C.F.R. ‘ 4.2 (2016) (VA is required to “return the
[examination] report as inadequate for evaluation purposes” if the report “does not contain
sufficient detail”). Specifically, the examination report failed to adequately consider an alternative theory of service connection through a “continuity of symptomatology” analysis under § 3.303(b), title 38, Code of Federal Regulations. The appellant has a condition that is considered “chronic” under 38 C.F.R. § 3.309 and thus can establish service connection through a theory of continuity of symptomatology. The examiner provided a negative nexus opinion, but found that the appellant experienced a “flare up of back pain once or twice yearly.” R. at 2774. As long as the back pain is in the same location when it flares up it is unclear why this pain would not be a continuity of symptoms subject to service connection. While the examiner found that “[a]n etiologic diagnosis is not established for most patients with back pain,” such a finding is irrelevant when considering whether service connection is warranted under a theory of continuity of symptomatology. See Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed. Cir. 2008) (finding that an appellant does not need to provide medical evidence of an etiological link between a condition in service and a current
5
disability to satisfy 38 C.F.R. § 3.309). Remand is required for the Board to return the May 2013 examination for clarification or provide a new examination.
Because the Court is remanding the appellant’s lumbar spine claim, the Court will not
address the appellant’s psychiatric condition claim as it is claimed to be secondary to the lumbar
spine claim and thus is inextricably intertwined with this claim. See Dunn v. West, 11 Vet.App.
462, 467 (1998). On remand, the appellant may present, and the Board must consider, any
additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The
remanded matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also
Hayburn’s Case, 2 U.S. at 410 n. (“[M]any unfortunate and meritorious [veterans], whom
Congress have justly thought proper objects of immediate relief, may suffer great distress, even by
a short delay, and may be utterly ruined, by a long one . . . .” (internal quotation marks omitted)).
For the foregoing reasons and on review of the record, that part of the September 1, 2015,
Board decision on appeal regarding the appellant’s lumbar spine disorder and psychiatric condition
secondary to his lumbar spine disorder is VACATED and those matters are REMANDED for
readjudication. The remainder of the decision on appeal is AFFIRMED.
DATED: March 31, 2017
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)

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